UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. TYRONE HENRY TANNER, Defendant-Appellant. No. 13-6183 (D.C. No. 5:12-CR-00065-D-4) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, GORSUCH and HOLMES , Circuit Judges.
After entering into a plea agreement th at included a waiver of his right to appeal, defendant Tyrone He nry Tanner pleaded guilty to one count of conspiring to possess with intent to distri bute, and to distribute, seve ral controlled substances and one count of money laundering. By sti pulation the agreement attributed 2,999 kilograms of marijuana-equivalent to Mr. Tanner in connection with the first count

* This panel has determined that oral ar gument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It ma y be cited, however, for its persuasive value consistent with Fed. R. App. P. 32. 1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - and $6,800 in laundered drug proceeds in conn ection with the second. The district court sentenced Mr. Tanner to 135 mont hs’ imprisonment on each count, to run concurrently, a term within the applicable guideline ra nge of 135 to 168 months determined by the court. Mr . Tanner then filed this app eal, despite the broad waiver of appeal rights included in his plea agr eement. The government has filed a motion to enforce that waiver. We grant the motion and dismiss the appeal. The government’s motion expl ains in facially suffic ient fashion that this appeal falls within Mr. Tanner’s appeal waiver, that the waiver was knowing and voluntary, and that there are no circumstances to suggest a misca rriage of justice to excuse the waiver. See generally United States v. Hahn , 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam) (summarizing th ree components of court’s inquiry when enforcing appeal waiver). In response, after noting two sentencing objections urged by his cl ient, counsel for Mr. Tanne r conceded there were no grounds upon which to oppos e application of the appeal waiver and moved to withdraw under Anders v. California , 386 U.S. 738 (1967). We gave Mr. Tanner an opportunity to reply to couns el’s filing, but (despite a lengthy extension) the deadline for that response has passed without a nything forthcoming fro m Mr. Tanner. When appellate counsel moves to withdraw under Anders , we must examine the proceedings and determine whether the appeal is “w holly frivolous.” Id. at 744. In the present context, that means we must assess wh ether there is a non-frivolous- 3 - argument to be made in opposition to the government’s motion to enforce the appeal waiver. We agree with couns el that there is not. The plea agreement states that defenda nt “knowingly and voluntarily waives his right to . . . [a]ppeal . . . his guilty plea, sentence a nd restitution imposed, and any other aspect of his conviction. ” Dist. Ct. doc. 164 at 9. Specifically as to sentence, the agreement states that he waives his right to appeal “his sentence as imposed by the Court and the manner in which the sent ence is determined, provided the sentence is within or below the advisory guideline range determined by the Court to apply to this case.” Id. at 10. The two sentencing objec tions identified by counsel, involving the denial of safety-valve adjustment under U.S.S.G. § 5C1.2( a) and the imposition of a firearm enhancement unde r U.S.S.G. § 2D1.1(b)(1), fall squarely within the waiver. And since these only involve sentence-guidelin e computations, even if erroneous they would not qualif y as miscarriages of justi ce to excuse the waiver.
See United States v. Smith , 500 F.3d 1206, 1213 (10th Cir. 2007) (“To allow alleged errors in computing a defendant’s senten ce to render [an appeal] waiver unlawful would nullify the waiver based on the very sort of claim it was intended to waive.”); see also United States v. Polly , 630 F.3d 991, 1001-02 (10th Cir. 2011) (following Smith ). Finally, nothing in the record undercuts the representations of a knowing and voluntary waiver in the agreement. On the contrary, the plea colloquy confirmed those representations.- 4 - Because it appears it would be wholly frivolous for Mr. Tanner to oppose the government’s motion to enforce his appeal waiver, we grant that motion as well as counsel’s motion to withdraw. The appeal is dismissed.

Entered for the Court Per Curiam